Building WOF changes approved

Following the tragic fire at Loafers Lodge in Wellington, Cabinet has approved changes to the building warrant of fitness (BWOF) to include new and enhanced offences and penalties for non-compliance

On May 16 2023, a fire broke out at the 92-bed Loafers Lodge in Wellington, resulting in the death of five people and injuring 20 others.

Following the fire, the then Minister for Building and Construction Hon Dr Megan Woods asked the Ministry of Business, Innovation and Employment (MBIE) to provide advice on whether there are areas of building health and safety that can be improved.

Following the work, Cabinet has agreed to introduce and enhance offences and penalties for building owners and “independent qualified persons (IQP) to better comply with their statutory requirements under the BWOF regime”, said MBIE.

Before the changes become law, they will need to be included as amendments to the Building Act – which will be progressed in the next available legislative vehicle.

Increased penalties

A building owner is required to renew a building’s WOF every 12 months. This ensures that safety systems within the building, such as automatic sprinkler systems, are performing and are expected to perform to the standards set out in the building consent.

Cabinet has approved an increase in infringement offences for building owners who do not supply, or fail to display, a BWOF from $250 to $1,000.

New offences

To complete the yearly inspection, a building owner must engage an IQP, who undertakes the inspection as well as maintenance and reporting procedures listed on the compliance schedule for each specified system. If the building system passes, the IWP then issues Form 12A (also called a certificate of compliance).

There is currently no offence in the Building Act to prosecute a negligent inspection. The only recourse councils have is to remove them from their register. Alternatively, they can attempt to charge them under the Building Act for providing a false or misleading document.

“Cabinet has approved a change to the Building Act to clarify that an IQP may only issue a Form 12A if the procedures in the building’s compliance schedule relating to the system have been fully complied with,” said MBIE.

The changes will result in fines issued of up to $50,000 for an individual or $150,000 for a body corporate if an independent qualified person is found to have negligently issued a Form 12A.

Purpose of a BWOF

MBIE states that “all buildings, other than single residential buildings (unless serviced by a cable car), require a compliance schedule and annual WOF if they contain any of the specified systems listed in Schedule One of the Building (Specified Systems, Change the Use, and Earthquake-prone Buildings) Regulations 2005. This includes systems such as automatic sprinkler systems, fire alarms and lifts.

Legislation requires building owners to provide territorial authorities with copies of Form 12A certificates from IQPs, including any recommendations they make. Following this, a territorial authority must consider any recommendations made, and where necessary, make any changes to the compliance schedule after giving the owner an opportunity to provide comments.

Building owners can be prosecuted or fined up to $20,000 under the Building Act for the following offences:

• Failure to obtain a compliance schedule.
• Failure to supply the council with a BWOF.
• Failure to display a building BWOF required to be displayed.
• Displaying a false or misleading building BWOF.
• Displaying a building BWOF other than in accordance with section 108 of the Building Act.

Furthermore, failure to obtain a compliance schedule can result in a $2,000 fine per day for every day a compliance schedule is not obtained.

Councils can also issue instant fines from $250 – $1,000 for any of the offences above. Building owners can also be fined $1,000 for not complying with a notice to fix.

Building owners can also be fined up to $100,000 for permitting or using a building which is dangerous or insanitary, or has inadequate means of escape from fire. Additionally, a daily fine of $10,000 per day the offence is continued can be brought against owners. Instant fines of $1,500 and $2,000 can also be issues for these offences.